On July 27, 2015, the Michigan Supreme Court clarified the use of defenses under the Michigan Medical Marijuana Act in People v Hartwick, 2015 Mich. Lexis 1639.

In Hartwick, the Supreme Court strengthened the immunity under Sec. 4 of the MMMA and clarified the affirmative defense under Sec. 8 of the MMMA.

SECTION 4 IMMUNITY

These are the new rules about Sec. 4 immunity:

1. A defendant (patient or caregiver) can claim Sec. 4 immunity for each charged offense if the defendant shows to the trial judge by preponderance of the evidence in a pre-trial motion the defendant:

a. Possessed a valid registry card,
b. Complied with the volume limitations at Sec. 4a and 4b,
c. Stored the medicine in a closed, locked facility,
d. Was engaged (or patients engaged) in the medical use of marijuana.

2. A defendant is entitled to a presumption that the marijuana was for medical use if:

a. The defendant possessed a valid registry card,
b. The defendant complied with the volume requirements.

3. The prosecution may rebut the presumption for medical use if the prosecutor can present evidence that the marijuana use was not for the purpose of alleviating the registered patients debilitating medical condition.

4. Improper conduct in one MMMA transaction cannot be used to rebut a defendant’s right to use the MMMA immunity in another charged defense.

5. Importantly, a caregiver does not have to prove all of their patients’ medical conditions, etc. A caregiver only has to have a valid proof that patient had a valid card and the caregiver was in possession of no more than the lawful amount.

The court in this case clarified that Sec. 4 is an immunity question to be decided by the court before trial. The court pointed out that the immunity section is designed to make it easier for people who comply with the law to avoid formal prosecution. Therefore, the court said that primary caregivers are not required to prove all of their patients’ underlying medical conditions, etc. The caregiver simply has to prove that the patient had a valid card and they were in possession of no more than a lawful amount for that patient.

SECTION 8 DEFENSE UPDATE

Consistent with its previous decision in People v Kolanek, 491 Mich. 382 (2012) the court clarified the Sec. 8 defense. First, if a defendant proves to the trial court by a preponderance of the evidence by motion that he or she is entitled to the defense, then a court must dismiss the marijuana charges before trial. Alternatively, if there is a question about one of the four elements, but the defendant makes a showing there is a factual question, then the defendant can get the Sec. 8 defense to be considered by they jury. This applies no matter what the registry status of the patient or caregiver is.

If the matter is involving a caregiver, the caregiver also has a duty to prove each of his patients’ Sec. 8 defenses, so the burden is very high on a caregiver who does not comply with the statute.

The Sec. 8 defense has three parts:

1. A physician-patient relationship

The defendant must provide evidence that there is a physician-patient relationship and it has the following elements:

a. The existence of a bonafide physician-patient relationship (which normally means something more than a single visit),
b. The physician completed a full assessment of the patient’s history and current medical condition,
c. In the physician’s opinion, the patient has a debilitating medical condition and will likely benefit from the use of medical marijuana.

2. Quantity of Marijuana

Patient must show that he or she and/or the primary caregiver is in possession of an amount no more than reasonably necessary to insure the continued availability of marijuana.

3. Marijuana for Medical Use

The defendant must show that either the patient and/or the caregiver were engaged in the acquisition, possession, cultivation, and transportation of marijuana for treatment for medical use. Again, the courts require caregivers to prove the medical use for each one of his or her patients in order to have the benefit of a Sec. 8 affirmative defense.

Besides putting on testimony about the amount of medicine necessary for reasonable use, a defendant is going to have to make sure they put on testimony about whether a full assessment and history were done by the doctor and the nature of the relationship between the doctor and the patient. It appears that direct doctor testimony is not absolutely necessary and the defendant’s testimony along with sufficient evidence may support the elements of the physician-patient relationship.

A lot of medical marijuana defenses are very technical and complex and made worse by constantly changing case law by judges who suffer from reefer madness and judges that realize the idiocy of the failed war on drugs.

Contact Coltrane & Nye, PLLC for a Free Consultation about your medical marijuana criminal matter, medical marijuana licensing matter, or medical marijuana business matter.

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